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United States v. Figueroa

United States District Court, D. Nevada

May 23, 2018

UNITED STATES OF AMERICA, Plaintiff(s),
v.
JOSE FIGUEROA, Defendant(s).

          ORDER

         Presently before the court is petitioner Jose Figueroa's abridged motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (ECF No. 80).

         Also before the court is petitioner's motion to vacate, set aside, or correct sentence pursuant to 28 U.S.C. § 2255. (ECF No. 93). The government filed a response (ECF No. 95), to which petitioner replied (ECF No. 102).

         I. Facts

         On March 8, 2011, the government filed an indictment charging the petitioner with six counts of interference with commerce by robbery (“Hobbs Act robbery”), one count of conspiracy to commit Hobbs Act robbery, and seven counts of use and carry of a firearm in relation to a crime of violence. (ECF No. 1). On April 27, 2012, petitioner pleaded guilty to one count of conspiracy to commit Hobbs Act robbery (count 1), six counts of Hobbs Act robbery (counts 3, 5, 7, 9, 11, and 13), and one count of discharging a firearm during a crime of violence (count 8). (ECF No. 59). Importantly, petitioner pleaded guilty to count eight (discharging a firearm during a crime of violence), which, according to the indictment, was tethered to count seven (one of the Hobbs Act robbery counts). See (ECF Nos. 1, 59).

         On August 27, 2012, the court[1] sentenced petitioner to 180 months imprisonment on counts I. 3, 5, 7, 9, 11, and 13 (“to be served Concurrently”), and 120 months imprisonment on count 8 (“to be served Consecutively”), resulting in a cumulative term of imprisonment of 300 months. (ECF Nos. 74, 75). This sentence constituted an upward departure of 43 months in accordance with the plea agreement. See (ECF No. 59). The court entered the judgment on the same day. (ECF No. 75). Petitioner did not appeal the judgment.

         II. Legal Standard

         Federal prisoners “may move . . . to vacate, set aside or correct [their] sentence” if the court imposed the sentence “in violation of the Constitution or laws of the United States . . . .” 28 U.S.C. § 2255(a). Relief pursuant to § 2255 should be granted only where “a fundamental defect” caused “a complete miscarriage of justice.” Davis v. United States, 417 U.S. 333, 345 (1974); see also Hill v. United States, 368 U.S. 424, 428 (1962).

         Limitations on § 2255 motions are based on the fact that the movant “already has had a fair opportunity to present his federal claims to a federal forum, ” whether or not he took advantage of the opportunity. United States v. Frady, 456 U.S. 152, 164 (1982). Section 2255 “is not designed to provide criminal defendants multiple opportunities to challenge their sentence.” United States v. Johnson, 988 F.2d 941, 945 (9th Cir. 1993).

         III. Discussion

         In his instant motion, petitioner moves to vacate pursuant to Johnson v. United States, 135 S.Ct. 2551 (2015) (“Johnson”), and requests that the court resentence petitioner. (ECF No. 93). In particular, petitioner argues that his conviction violates the Constitution's guarantee of due process.

         In Johnson, the United States Supreme Court held the residual clause in the definition of a “violent felony” in the Armed Career Criminal Act of 1984, 18 U.S.C. § 924(e)(2)(B) (“ACCA”), to be unconstitutionally vague. 135 S.Ct. at 2557. The ACCA defines “violent felony” as any crime punishable by imprisonment for a term exceeding one year, that:

(i) has as an element the use, attempted use, or threatened use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of explosives, or otherwise involves conduct that presents a serious potential risk of physical injury to another.

18 U.S.C. § 924(e)(2)(B) (emphasis added). The emphasized above is known as the ACCA's “residual clause.” Johnson, 135 S.Ct. at 2555-56. The Court held that “increasing a defendant's sentence under ...


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